Many more '3rd strikes' in some counties

Updated 9:07 am, Tuesday, January 29, 2013

Acting Santa Clara County Public Defender Molly O'Neal says the county's past policy led to excess third strike prosecutions.

Acting Santa Clara County Public Defender Molly O'Neal says the county's past policy led to excess third strike prosecutions.

Photo: James Tensuan, The Chronicle

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Santa Clara County public defender Molly O'Neal poses in the library of the Santa Clara County Public Defender's office in San Jose, Calif. Monday, Jan. 28. 150 inmates in Santa Clara county have found themselves eligible for shorter sentences after California voters approved to change the state's "three strikes" law. less

Santa Clara County public defender Molly O'Neal poses in the library of the Santa Clara County Public Defender's office in San Jose, Calif. Monday, Jan. 28. 150 inmates in Santa Clara county have found ... more

Photo: James Tensuan, The Chronicle

Many more '3rd strikes' in some counties

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When California voters overwhelmingly approved changes to the state's tough "three strikes and you're out" law in November, 150 inmates in Santa Clara County who had faced the prospect of dying of old age behind bars suddenly found themselves eligible for reduced sentences and freedom.

Of Bay Area counties, Santa Clara County had by far the most inmates become eligible for more lenient terms because their most recent convictions were for offenses that weren't serious or violent. San Francisco, by contrast, had three.

It's an indication that the three strikes law that California voters originally approved in 1994 hasn't been enforced evenly among counties in the Bay Area or throughout the state. In some places, defendants whose third strikes were minor - in extreme examples, for stealing a bicycle or even a pizza - were more likely to have the book thrown at them.

"Too many people were prosecuted unfairly under the former three strikes law in Santa Clara County, and had those same people committed the same crime in other jurisdictions, they would not have received life sentences," said Molly O'Neal, acting public defender in Santa Clara County.

Prop. 36 changes

The November initiative, Proposition 36, changed the three strikes law by limiting the third strike - and the 25-years-to-life penalty - to serious or violent crimes. The law provides for exceptions - a life sentence can still be imposed for offenders who commit certain drug, sex and gun-related crimes.

The law also allowed current prison inmates to appeal their sentences if their third strike was a nonviolent conviction.

Some 2,80o inmates statewide are eligible to ask courts for a reduced sentence - about one-third of the 8,873 three-strikers behind bars - according to the nonpartisan Legislative Analyst's Office.

The disparity in the number of three-strikers seeking legal relief stems largely from how the law was initially applied.

In San Francisco, prosecutors pursued third-strike convictions in numerous cases - at first. But defense attorneys argued that doing so was "unfair and inhumane," said Public Defender Jeff Adachi.

When Terence Hallinan became district attorney in 1996, he reversed his predecessor's policy, filing charges under three strikes only in the most serious cases. Less serious cases were still prosecuted, but defendants wouldn't face life in prison if convicted, as they would under three strikes.

Law applied cautiously

It made sense to apply the law "real cautiously," Hallinan said. "You could technically put people in prison for life for shoplifting. If you're putting someone in for life, it should be for something that merits it."

Prosecutors also changed their philosophy in San Mateo County, said District Attorney Steve Wagstaffe, who was a top assistant prosecutor in the 1990s.

San Mateo County prosecutors frequently filed third-strike charges against nonserious offenders until about 2000, when they "assessed our community's views and law enforcement's views and determined that we could proceed less aggressively," Wagstaffe said.

Under the initiative that voters approved in November, 20 inmates sentenced under three strikes in San Mateo County are eligible for lighter terms. Six of them have hearings scheduled in February.

'Aggressive' stance

In Santa Clara County, where enforcement was toughest in the Bay Area, supervising Deputy District Attorney Lance Daugherty said prosecutors had been "aggressive in the past" in going after three strikes convictions for defendants, some of whom would have gotten lighter sentences elsewhere.

Four inmates from the county have already been resentenced to lighter terms under the November initiative, which District Attorney Jeff Rosen publicly endorsed. Prosecutors and public defenders also "have consensus" on about 60 inmates who don't pose a threat to the public, said O'Neal, the acting public defender.

However, "I expect that there may be contested hearings on the remainder," she said.

Bay Area prosecutors elsewhere generally aren't contesting requests to have three strikes sentences cut. In Contra Costa County, which had seven inmates eligible for reduced terms, five prisoners have already been released and a sixth will soon get out, said Public Defender Robin Lipetzky.

The crimes that constituted their third strikes included transportation for sale of a controlled substance and petty theft - for stealing a pair of shoes.

In all the cases, a judge signed off on the early releases based on uncontested agreements between prosecutors and public defenders.

Contentious county

Such cooperation isn't found everywhere.

In Riverside County, where about 180 inmates are eligible for resentencing, prosecutors say they plan to contest every three strikes petition.

"This office does not take these petitions lightly," said John Hall, a spokesman for Riverside County District Attorney Paul Zellerbach. "Our office initially objects to all petitions due to having very limited information at that point regarding whether the inmate is legally or factually entitled to be resentenced."

Hall said prosecutors will look at the petitions case by case "and will continue to strongly oppose the release of any inmate we believe poses a danger to public safety."

Of the state's eligible three-strikers, nearly 70 percent were sentenced in Los Angeles, San Bernardino, San Diego, Riverside and Orange counties.

Three strikes' origin

The original three strikes law aimed to lock up career criminals like Richard Allen Davis, who had a long string of convictions for robbery, assault and abduction before kidnapping and murdering 12-year-old Polly Klaas of Petaluma in 1993.

Polly's father, Marc Klaas, was the main force behind three strikes and opposed Prop. 36. Three strikes was "never about stealing pizzas," he said. But he also said Prop. 36 will result in the release of serial criminals who have a "cumulative criminal history and the potential for recidivism."

Klaas added, "I would love if those characters were moved into houses next door to their defenders."

Attorneys on both sides of the table, however, say the reform was needed, if only to correct inequities in how three strikes was applied across the state.

San Francisco District Attorney George Gascón, co-chairman of the Prop. 36 campaign, said the original law disproportionately targeted low-income minorities and was applied unevenly.

In Alameda County, where nine inmates are eligible for reduced sentences, prosecutors have "historically had a good approach to the three strikes law," said Public Defender Brendon Woods. But some other counties take a "separate and distinct approach," he said, which in some cases is "less just."

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